Citation Nr: 9812127
Decision Date: 04/17/98 Archive Date: 05/06/98
DOCKET NO. 96-31 734A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased (compensable) evaluation for
postoperative right inguinal hernia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Associate Counsel
INTRODUCTION
The appellant had active military service from October 1972
to July 1973.
REMAND
The appellant is currently service connected for
postoperative right inguinal hernia, for which a
noncompensable evaluation has been assigned under Diagnostic
Code 7338 for “hernia, inguinal.” 38 C.F.R. § 4.114
(1997).
The appellant was most recently examined by the VA in
September 1995 at which time a 6 inch scar in the right
inguinal area was noted, and it was reported by the examiner
that there was no evidence of recurrence of the hernia. VA
medical records dated in 1996 reflected that the veteran was
experiencing recurrent episodes of burning and epigastric
problems which were diagnosed as peptic ulcer disease. In
light of the veteran’s complaints, the Board believes that a
VA examination in which the examiner addresses the presence
or absence of the criteria provided under Diagnostic Code
7338, would prove helpful.
Further, the Board also notes that in hearing testimony given
by the appellant in January 1998, he indicated that the scar
from his hernia repair in 1973 was symptomatic. He
specifically testified that the scar was painful, itchy, sore
and disfiguring.
In the case of Esteban v. Brown, the United States Court of
Veterans Appeals (Court) addressed the question of when
separate ratings should be assigned for separate and distinct
manifestations stemming from the same injury. Esteban v.
Brown, 6 Vet. App. 259, 261 (1994). The Court held that
"[T]he critical element in determining whether appellant's
disabilities may be rated separately is whether any of the
symptomatology for any condition is duplicative of or
overlapping with the symptomatology of the other conditions."
Esteban, at 262 (1994).
In this case, it appears that it is possible that a separate
evaluation for the veteran’s hernia scar may be warranted.
Accordingly, the Board believes that an evaluation of the
scar should be undertaken upon VA examination to include
taking photographs of the affected area. In addition, the RO
is requested to address the matter of whether separate
ratings should be assigned for postoperative right inguinal
hernia under Diagnostic Code 7338, and for a hernia scar
under the potentially applicable Diagnostic Codes which may
include, 7800, 7804, 7805, and 7806.
To ensure that VA has met its duty to assist the appellant in
developing the facts pertinent to the claim, the case is
REMANDED to the regional office (RO) for the following
development:
1. The appellant should be contacted and
requested to furnish a complete list of
all medical personnel and facilities from
which he has received treatment for his
hernia and hernia scar since May 1996.
After obtaining the appropriate releases
from the appellant where necessary, the
health care providers should be contacted
and requested to provide all treatment
records in their possession pertaining to
the veteran. If these records are
unavailable or are duplicates of those
already on file, that fact should be
annotated in the claims folder. Any
available records should be associated
with the claims folder.
2. The appellant should be afforded a VA
examination conducted by the appropriate
specialist, to determine the current
symptomatology and severity of the
service connected postoperative right
inguinal hernia. The examiner should
list all pertinent complaints and
findings. The examiner should
specifically address whether the hernia
is recurrent, readily reducible, well
supported, and if the wearing of a
support such as a truss or a belt, is
necessary. The examiner should also
evaluate the veteran’s complaints and the
symptomatology attributable to the hernia
scar, and should specifically report: any
complaints of and objective demonstration
of pain or tenderness of the scar; any
limitation of function caused by the
scar; the presence and extent of any
disfigurement, and complaints and
evidence of exfoliation, exudation, and
itching.
3. When the above actions have been
completed, the pending issue should be
re-evaluated by the RO. The RO should
also consider assigning a separate
disability evaluation for the appellant's
hernia scar under the potentially
applicable Diagnostic Codes which may
include, 7800, 7804, 7805, and 7806.
If the determination is unfavorable to the appellant, he and
his representative should be furnished a supplemental
statement of the case in accordance with 38 U.S.C.A. § 7105
(West 1991). This document should include detailed reasons
and bases for the decisions reached. The veteran and his
representative should be afforded the opportunity to respond
thereto. After the above actions have been accomplished, the
case should be returned to the Board for further appellate
consideration, if otherwise in order. By this REMAND the
Board intimates no opinion, either factual or legal, as to
the ultimate determination warranted in this case.
While this case is in remand status, the appellant is free to
submit additional evidence and argument on the question at
issue. See Quarles v. Derwinski, 3 Vet. App. 129, 141
(1992).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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